Saturday, June 23, 2018

SC Administrative Law Court Decisions

SCDMV vs. Darrell Eugene Lark

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Darrell Eugene Lark





This matter is an appeal by the South Carolina Department of Motor Vehicles (“Department”) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2007). The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Darrell Eugene Lark (“Lark”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.


On December 23, 2006, Trooper Joseph Adam Hamilton of the South Carolina Highway Patrol was on routing patrol in Anderson County when he observed a vehicle on Highway 86 exceeding the posted speed limit. He followed the vehicle and attempted to initiate a traffic stop and the vehicle turned onto a residential area without using the turn signal and finally came to a stop in a residential yard. Respondent was identified as the driver. Trooper Hamilton asked the Respondent what was going on and whether he had been drinking. Respondent stated that he had too much to drink. Trooper Hamilton did not administer any field sobriety tests to Respondent and placed the Respondent under arrest for driving under the influence based on visual indicators. He then transported the Respondent to the Anderson County Detention Center for a DataMaster test. At the DataMaster site, the Respondent was read his Rights (Advisement of Implied Consent Rights) and asked to take the breath test. The Respondent refused. Because the solution had expired in the DataMaster machine, Trooper Hamilton changed the solution and got the DataMaster machine operational. Trooper Hamilton then gave the Respondent a copy of the Advisement of Implied Consent Rights in writing. The Respondent read the Advisement of Implied Consent Rights and then stated that he wanted to take the test. Trooper Hamilton did not offer the breath test to the Respondent. Trooper Hamilton’s decision was based on the fact that the Respondent had already refused the test.

On December 23, 2006, Respondent was given a written Notice of Suspension of his driver’s license for refusing to submit to the breath test and was charged with a violation of SC Code Ann 56-5-2950. After Respondent received a Notice of Suspension from law enforcement, DMV suspended Lark’s driver’s license for period of ninety days in accordance with state law. Lark then requested an administrative hearing.

On February 5, 2007, Hearing Officer Tracy G. Holland convened the hearing. Trooper Hamilton appeared and testified. Respondent did not appear, but was represented by counsel At the close of the hearing, counsel for Respondent moved to dismiss based upon grounds that the arrest was unlawful and that Respondent did not actually refuse the test. Hearing Officer Holland subsequently issued an order rescinding Lark’s suspension on the following grounds:

I find and conclude that the Respondent was not fairly given an opportunity to submit to a breath test. Based on the series of events I find that pursuant to the testimony the Respondent’s request to take the breath test was reasonable and made in a timely manner for the Officer to administer the breath test to him and he was not afforded that opportunity. The Officer’s testimony was that he could have given the Respondent an opportunity to give a breath sample but he chose not to because the Respondent had refused after being read the Advisement of Implied consent rights. The Officer had to change the DataMaster machines solution and make the machine operational. During the time the Respondent was given a copy of his Advisement of Implied Consent Rights to read which is required by statute. After reading his Advisement of Implied Consent Rights, the Respondent asked to give a breath sample. Once the DataMaster machine was operational, the officer did not acknowledge the Respondent’s request to submit to the breath test.

The Department now appeals.


1.      Did the Hearing Officer err when she determined that the law enforcement officer was required to administer the DataMaster test after the Respondent had initially refused?

2.      Did the Hearing Officer err by concluding that the Department failed to meet its burden of proof with respect to demonstrating that Lark was given the Implied Consent Advisement in writing prior to the refusal?

3.      Did the Hearing Officer err in holding that the Respondent was not fairly given an opportunity to submit to a breath test?


The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).[1] This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.


  1. The Hearing Officer erred when she determined that the Law Enforcement Officer was required to administer the DataMaster test after the respondent had initially refused.

The record contains substantial evidence that Respondent refused testing after he was informed orally and in writing of his implied consent rights. Once the refusal occurs, the officer is not required to administer the test even if the driver changes his mind. See Leviner v. SC dept of Highways and Public Transportation, 313 S.C.409, 438 S.E.2d 246 (1993). In Leviner the motorist refused the test after the Breathalyzer operator orally informed him that his license would be suspended for ninety days if he refused. Id. At 247, 438 S.E.2d at 410. The Supreme Court rejected the minority line of cases that would allow a subsequent consent to cure an initial refusal under this reasoning:

Having studied the minority and majority views, we adopt the bright line rule. One immediate purpose of the implied consent statute is to obtain the best evidence of a driver's blood alcohol content at the time when the arresting officer reasonably believes him to be driving under the influence. Schroeder v. State, 105 Nev. 179, 182, 772 P.2d 1278, 1280 (1989) (per curiam). The bright line rule alleviates the concern that because the reliability of the test diminishes with the passage of time, allowing arrestees to delay their consent would enable them to manipulate their test results. Id. at 182, 772 P.2d at 1280.   Additionally, it is unreasonable to expect an arresting officer to consider a refusal as conditional so that he must remain near the arrested person for an extended period of time. The arresting officer would be required to forsake other duties to arrange for a belated test that the motorist had already refused after receiving warnings of the consequences of his noncompliance. Id. at 182, 772 P.2d at 1280.

Based upon the Supreme Court’s decision in Leviner, the Hearing Officer erred in determining that Officer Hamilton was required to administer the test after the initial refusal. Therefore, the Hearing Officer’s decision is reversed.

2. The Hearing Officer erred in holding that there was no substantial evidence that the law enforcement officer had provided the implied consent advisement in writing to the respondent prior to the refusal.

Summary of Applicable Law

The license to operate a motor vehicle upon the public highways of this State is not a right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (Supp. 2004) and S.C. Code Ann. § 56-5-2951 (Supp. 2004). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (Supp. 2004).[2] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be informed in writing that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(a) (Supp. 2007).

Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (Supp. 2007). However, Section 56-5-2951 also grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2004); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).

Implied Consent Rights Advisement

a. Generally

Section 56-5-2950 is widely called the “implied consent” statute,[3] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[4] However, according to SLED Implied Consent Policy 8.12.5(D),[5] there are actually eight different situations in which an “implied consent” test can be requested, and SLED has drafted a separate advisement for each different situation. SLED has named these eight advisements as follows: (1) DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence (“BUI”) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage Advisement; (7) Flying Under the Influence (“FUI”) Advisement; and (8) Shooting Under the Influence (“SUI”) Advisement. SLED Implied Consent Policy 8.12.5(D). Of these eight different advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 341 (Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copy of DUI Advisement).

b. “In Writing” Requirement

The Department argues that the DMVH hearing officer erred by concluding that the Department failed to meet its burden of proof with respect to demonstrating that Lark was given the implied consent advisement in writing. I agree.

At the hearing, Officer Hamilton provided the following testimony:

I transported him to the Anderson County Detention Center where he was offered a Breathalyzer test and he was informed in writing of his rights. He was asked to take the test and then he refused the test. Subsequently, I issued a Notice of Suspension for his driver’s license.

(emphasis added). This testimony was not contradicted. Moreover, in her Findings of Fact, the hearing officer made the following finding:

At the Datamaster site, the Respondent was read his Rights and asked to take the breath test…Trooper Hamilton gave the Respondent a copy of the advisement of Implied Consent rights in writing.

(emphasis added).

In light of the foregoing, the hearing officer’s conclusion that the Department failed to sufficiently prove that Lark was given the implied consent advisement in writing is both odd and erroneous. While it is true that a tribunal does not always have to accept uncontradicted evidence as establishing the truth, the same should be accepted unless there is reason for disbelief. Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975). In this case, the record discloses no reason to disbelieve Officer Hamilton’s testimony. Therefore, Officer Hamilton’s testimony alone was sufficient to establish that Lark was given the Implied Consent Advisement in writing. See Cheatham v. Gregory, 313 S.E.2d 368, 370 (Va. 1984) (“A trier of fact must determine the weight of the testimony and the credibility of witnesses, but may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record . . .”); see also Mackey, 443 U.S. at 14 (opining that “the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial”).

3. The Hearing Officer erred in holding that the Respondent was not fairly given an opportunity to submit to a breath test when evidence established that the Respondent was read his advisement prior to refusal and there was no evidence that he was prejudiced by any failure to provide the advisement prior to refusal.

Respondent waived his right to testify and did not introduce any evidence that he had a different understanding of the advisement between when it was read to him and when it was given to him in writing. Thus, there was no prejudice arising from any alleged failure to provide the Advisement in writing prior to his refusal, nor does there appear to be anything in the record by which prejudice may be inferred. Even if Trooper Hamilton had failed to testify that he gave Respondent a copy of the Advisement prior to an offer to submit a breath sample, that would not require rescission of the mandatory suspension. The South Carolina Court of Appeals concluded that Supreme Court precedent dictates that “a violation of Section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained... ie. the motorists’ refusal to submit to a DataMaster test. Taylor v. SC Dept. of Motor Vehicles, 386 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006) Citing State v. Huntley, 249 S.C. 1, 562 S.E.2d 472 (2002) (emphasis added).

In this case, Trooper Hamilton, the only witness at the hearing, testified that he read the Implied Consent Advisement to the Respondent. There was no testimony by the Respondent that he did not understand the advisement as read to him. There was also no testimony or other evidence that the written disclosure was not given to him. Therefore, there are simply no grounds upon which to rescind Respondent’s mandatory suspension.


It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.



Carolyn C. Matthews

Administrative Law Judge

October 1, 2008

Columbia, South Carolina

[1] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[2] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (Supp. 2007).

[3] See, e.g., State v. Haase, 367 S.C. 264, 267, 625 S.E.2d 634, 635 (2006); State v. Frey, 362 S.C. 511, 516, 608 S.E.2d 874, 877 (Ct. App. 2005); State v. Bacote, 331 S.C. 328, 329, 503 S.E.2d 161, 162 (1998); Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 336, 474 S.E.2d 443, 444 (Ct. App. 1996); S.C. Dep’t of Highways and Pub. Transp. v. Sanford, 318 S.C. 44, 45, 455 S.E.2d 710, 711 (Ct. App. 1995); State v. Baker, 310 S.C. 510, 511, 427 S.E.2d 670, 671 (1993); State v. Cribb, 310 S.C. 518, 520, 426 S.E.2d 306, 308 (1992); State v. Hunter, 305 S.C. 560, 561, 410 S.E.2d 242, 242 (1991); Shumpert v. S.C. Dep’t of Highways and Pub. Transp., 306 S.C. 64, 65, 409 S.E.2d 771, 772 (1991); State v. Williams, 297 S.C. 290, 293, 376 S.E.2d 773, 774 n.1 (1989).

[4] See e.g., Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 35, 627 S.E.2d 751, 752 (Ct. App. 2006); Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 36-37, 603 S.E.2d 412, 413 (Ct. App. 2004); see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”); but see State v. Cuevas, 365 S.C. 198, 201, 616 S.E.2d 718, 720 (Ct. App. 2005) (“Officers gave Cuevas the implied consent warnings for felony DUI . . .”).

[5] SLED’s implied consent policies can be found at